If you have an estate plan, congratulations! According to most authorities, you are in the minority. In a recent article published in the Wall Street Journal, over 50% of Americans do not have an estate plan or medical directives. In other published articles, this statistic is as high as 70%. Creating an estate plan is a crucial step in getting your “financial house” in order, and it also addresses important areas such as incapacity planning.
For those of you who have executed an estate plan, your work is not done. It is extremely important that you review and monitor your plan at least every five (5) years, if not more frequently. Why is a review so important? It is because you and the law are incredibly dynamic and ever changing.
One major reason for updates to an estate plan are the numerous changes that occur in your life. Common changes include divorce, a new child, the death of a spouse, a recent move, the acquisition of new assets, and the change of decision-makers appointed under your documents.
If you have moved to Nevada with an estate plan executed in a different state, it is important to meet with an attorney to review your entire estate plan. The nuances of law between Nevada and those of another state can be numerous, but there are a few key highlights. First, Nevada is a community property state, which may impact many married couples and their estate plan. Second, Nevada has many attractive laws to provide creditor protection to you and/or your beneficiaries. Many of my clients are thrilled to learn that they can take steps to protect their children’s inheritances from their children’s creditors, even a divorcing spouse.
Perhaps the cause for the most frequent updates to an estate plan is the change of decision-makers appointed under your documents. Family dynamics change, children grow older and more (or less!) responsible, financial institutions merge, and friends may come and go. Thus, the people that you appointed as a Trustee under your Trust or Personal Representative of your Will may have been right for you a few years ago but no longer make sense today. Your current bonds with people or your new health care concerns may also motivate you to change the individuals that you appointed to make health care decisions for you in the case of your incapacity.
In my opinion, the position that you want to review with the most care is who you appointed as the Trustee of your Trust or as the Personal Representative of your Will. The vast majority of Trust litigation concerns whether the Trustee followed his or her fiduciary duties owed to each beneficiary and whether the Trustee adhered to the provisions set forth in the Trust. Related to this, much litigation centers on the working relationship between the Trustee and the beneficiaries. A major area of state and federal case law also focuses on these concerns. It is imperative that you appoint a Trustee who will faithfully adhere to the terms of your Trust and who will follow the highest duty provided under law – the fiduciary duty.
Another major reason for updates to an estate plan are changes to state and federal laws that impact your documents. The most recent and significant federal law change was the American Taxpayer Relief Act of 2012 (ATRA), which was enacted in January 2013. This federal law made permanent the $5,000,000.00 estate tax exclusion amount and set the maximum estate tax rate at 40%. ATRA also made permanent the inflation-adjusted estate tax exclusion amount. Thus, for the year 2013, every individual has $5,250,000.00 that he or she can pass at death free of estate taxes. In light of ATRA, it is important that any married couple revisit their estate plan to ensure that the current ATRA exclusion amounts are commensurate with the couples’ asset base with regard to planning under the unlimited marital deduction. Furthermore, it is a good opportunity to revisit any estate or gift tax planning previously done or to contemplate future estate and gift tax planning opportunities under the current law.
There have been several changes to Nevada state law in recent years that may also impact your documents. In October 1, 2009, the Nevada legislature overhauled the Health Care and Financial Power of Attorney laws, which impact the following common estate planning documents: Durable Power of Attorney for Health Care Decisions, Declaration, and General or Springing Durable Power of Attorney for Financial Matters. The changes encompass important areas regarding the Health Insurance Portability and Accountability Act (HIPAA), potential conflicts of interest, the nomination of guardians of a person or an estate, and arbitration agreements entered on your behalf. The changes are so numerous and important that I recommend that my clients re-execute any of these documents that were signed prior to October, 2009.
More recently, the Nevada legislature passed the Independent Administration of Estates Act, which became effective October 1, 2011. This Act allows the Personal Representative appointed under your Will the power to administer most aspects of your probate estate without Court supervision. This not only makes probate proceedings less formal, it also results in significant savings to your estate due to lower Court costs, administration costs and attorney fees. I recommend that my clients re-execute Last Will and Testaments executed prior to October 1, 2011, even those that “pour-over” to a Trust, so that they can be updated to grant your Personal Representative these important powers.
Your work does not end once you execute your estate planning documents. In order to keep your financial house in order and to ensure all incapacity planning faithfully addresses your wishes, you must revisit your estate planning documents every few years. A vigilant review also ensures that your assets are properly titled, if needed, to effectuate your estate plan. A review of your estate plan is better optimized with the aid of your estate planning attorney to ensure that your documents also address any updates in federal or state law.